CHAP. gued to fet afide the nonfuit, which was unanimously res fufed by the whole Court of King's Bench. XVIII. Lord Mansfield." The policy here warrants that this cargo was neutral property. It appears from the policy itfcif, that the fhip was neutral; because it is called a Tuscar fhip; but the warranty is that the goods are neutral. It must be prefumed from the condemnation, as no other caufe appears, that it proceeded on the ground of the property beVide fupra. longing to an enemy. In the cafe of Bernardi v. Motteux; the decifion of the court turned upon the particular ground of the confifcation appearing on the face of the fentence; and that it did not appear to be on the ground of being ens emy's property. This being fo, the court gave the party an 363] opportunity to fhew by evidence, that the fpecific ground was really the cause of the condemnation. In this cafe, at Guildhall, the counfel admitted the general rule; but they Faid, if a copy of the proceedings could be had, a special caufe would appear. The proceedings are now come; and from them it appears, that the question turned entirely upon the property of the goods. For in the second court, to which they appealed from the fentence of the first, the quef tion was, whether the goods were free: the decree was, that they were. But the third court overturned the decifion of the fecond. It is fufficient, however, that no fpecial ground is stated; and therefore the rule must be difcharged." 42 Geo. III. If the ground of decifion appear to be not on the want of Heutrality, but upon a foreign ordinance manifeftly unjust, and contrary to the laws of nations, and the infured has only infringed fuch a partial law; as the condemnation did not proceed on the point of neutrality, it cannot apply to the warranty, fo as to discharge the infurer. Mayne v. Wal- In a policy of infurance, the fhip was warranted to be Por ter, B. R. Eaft. tuguese; and having been taken in her voyage by a French privateer, she was carried into France. The Court of Admiralty condemned her because she had an English supercargo on board. It appeared that there was a French ordi nance, prohibiting any Dutch fhip from carrying a fupercargo belonging to any nation at enmity with the court of France. In an action against the underwriter, these facts appeared upon which, a verdict was found for the plaintiff, subject XVIII. fubject to the opinion of the court, upon this question, CHA P. whether the circumftance of having an English fupercargo, was a breach of neutrality; and whether fuch a sentence was conclufive. Lord Mansfield."It is an arbitrary and oppreffive regulation, contrary to the law of nations. If you were both: ignorant of it, the underwriter must run all risks; and if the defendant knew of the edict, it was his duty to inquire if there was fuch a fupercargo on board. it must be a fraudulent concealment to vitiate a policy. But it is remarkable. that neither party has faid any thing of the treaties between.. France and Portugal." Judgment for the plaintiff One more rule is worthy of obfervation: which is, that [364] though the veffel be condemned as prize, yet if the grounds of the sentence appear manifeftly to contradict fuch a conc clufion, the court here will not difcharge the underwriters by declaring that the infured has forfeited his neutrality. An action was brought upon a policy of infurance on the Saloucciv. hip. Thetis, a Tufcan fhip, warranted neutral. At the trial Johnfon, B. R. Hill. 25 Geo. a verdict was found for the plaintiffs, subject to the opinion ii. of the court, upon a cafe, ftating, That the plaintiffs were Tuscan fubje&s refident at Leghorn that the hip, having neutral goods on board configned to London, was captured off the coaft of Barbary by a Spanish veffel. That he was carried into Spain, and there condemned as prize; which sentence, upon appeal to a fuperior court, was reversed: but upon a further appeal, the laft fentence was reverfed, and the first confirmed. That the grounds of condemnation were two; ift, That the fhip Thetis refused to be fearched, and refifted with force, having fired at the fhip of the Span iard 2d, That the Thetis had no charter party on board. The Captain answers these two grounds thus; 1ft, That he refisted and fired, the Spaniard having hailed him under falfe colours: 2d, That he had taken the goods on board by the piece, and had not freighted her to any individual; in which cafe a manifefto was fufficient, without a charter. party. The fentence of the last court admits the ship to H H be CHAP. be neutral, for it states it to be "the fhip Thetis, a Tufcati fhip, &c." XVIII. [365] Vide fupra. Lord Mansfield was abfent at the argument of this cafe. Mr. Juftice Willes." This is clearly a neutral fhip. Something was faid in argument about barratry; but I do not think the act of the Captain in this cafe amounts to that offence. The fecond ground of condemnation is given up. by the counfel: and the remaining question, is, whether the Captain has been guilty of fuch a breach of neutrality, as fhould affect the owners. If a fhip be neutral, and the be stopped, those who stop her muft pay for the detention. But it is faid she must stop to be fearched. I find no authority for fuch a position. Besides, the circumstances are very fufpicious. The Captain feems to have acted properly. Stoppage is always at the peril of the captors." Mr. Juftice Afbburst."I take the principle laid down at the bar to be true, that a fhip warranted neutral, must conduct herself so as not to forfeit her neutrality. But the facts of this cafe do not admit of the application. I do not find, that a neutral fhip muft fubmit to be fearched. It is rather an act of superior force, always refifted when the party is able; and the right falls within this position, that the searcher does it at his peril. If he find any thing contraband, or the property of an enemy, he is juftified: if not, he pays cofts. Is there any thing to justify the fearch in this cafe? certainly not, for the cargo was neutrak" Mr. Juftice Buller." It is not neceffary to give an opin ion as to barratry; but I take it to mean a wilful act of the captain to the injury of the owners. This would have been barratry, if it had been an act, which forfeits the neutrality. I do not agree that the property must continue neutral during the whole voyage. If it be neutral at the time of failing, it is fufficient; and if a war break out next day, the underwriter is liable. The anfwer given to the claim of search is conclufive, that the party does it at his perit; just like the cafe of Cuftom-Houfe officers. The practice of the Admiralty confirms it; for they give costs in cafes of improper detention: which they would not do, if neutral ships were, at at all events, liable to be stopt. Detention by particular or dinances, which do not form a part of the law of nations, is a risk within the policy. At first I compared this cafe in my own mind to that of an illegal voyage; but they are no way fimilar; for a fhip is only bound to take notice of the laws of the country fhe fails from, and of that to which the fails; but not the particular ordinances of other powers." Judgment was accordingly given for the plaintiff. CHA P. XVIII. Thefe are the cafes which have been decided, relative to the judgments of foreign courts being conclufive, and the effects which they have upon the contract of insurance; and from all of them it fhould feem, that this general doctrine may be collected: That wherever the ground of the fentence is manifeft, and it appears to have proceeded exprefsly upon the point in iffue between the parties; or wherever the fentence is general, and no fpecial ground is ftated, there it fhall be conclufive and binding, and the courts here will not take upon themfelves, in a collateral way, to [366: 1. review the proceedings of a forum, having competent jurifdiction of the fubject matter. But if the fentence be fo ambiguous and doubtful, that it is difficult to fay on what ground the decifion turned; or if there be colour to fuppofe, that the court abroad proceeded upon matter not relevant to the matter in iffue; there evidence will be allowed in order to explain. And if the fentence upon the face of it be manifeftly against law and juftice, or be contradictory, the infured fhall not be deprived of his indemnity; bécaufe, to ufe the words of Mr. Juftice Buller, any detention, by particular ordinances or decrees, which contravene or do not form a part of the law of nations, is a risk within a policy of infurance. HH 2 367 ر CHAP. Loccenius de jurę marit. 1. 2. 4. £. 1.8. 1 Mag. 90. Dougl. 255. r Vezey 319. CHAPTER THE NINETEENTH EJ Of Return of Premium. HAVING in feveral chapters fpoken fully of the various cafes, in which policies of infurance are either abfolutely void, or are rendered of no effect, by the failure of the infured in the performance of fome of thofe conditions, which he had taken upon himself; the next object of our inquiry will be, in what cafes, and under what circumftances, there fhall be a return of premium, In all countries, in which infurances have been known, it has been a cuftom, coeval with the contract itself, that where property has been infured to a larger amount than the real value, the infurer fhall return the overplus premium: or if it happen that goods are infured to come in certain hips from abroad, but are not in fact fhipped, the premium shalk be returned. If the fhip be arrived before the policy is made, and the underwriter is acquainted with the arrival, but the infured is not, it should seem the latter will be entitled to have his premium restored, on the ground of fraud. But if both parties be ignorant of the arrival, and the policy be (as it ufually is) of or not loft, I think in that cafe the underwriter fhould retain; becaufe under fuch a policy, if the ship had been loft, at the time of fubfcribing, he would have been liable to pay the amount of his fubfcription. The parties themselves frequently infert claufes in the policy, fating, that upon the happening of a certain event, there fhall be a return of premium. Thefe claufes have a binding operation upon the parties; and the conftruction of them is a matter for the court, and not for the jury, to determine.— In fhort, if the fhip or property infured, was never brought within the terms of the written contract, fo that the infurer never has run any risk, the premium must be returned. The principle, upon which the whole of this doctrine depends, is simple and plain, admitting of no doubt or ambigu |